How Privacy’s Defender Cindy Cohn Changed the Future of Encryption

16:05Cindy Cohn:And when John Gilmore called me and I said, well, what does this program do? Does it like blow things up? And he said, no, it keeps things secret. And I said, well, you should be able to publish instructions about how to keep things secret online. Like that's a First Amendment problem. And he said, well, we think so, too. Will you take the case? So we did. And the way that we argued this was really based in science. The publication of scientific ideas has always been protected under the First Amendment. It was very clear, even in the early 1990s, that some scientific ideas are published via code.

16:40Cindy Cohn:that coding is a way to be very precise about how to do things, especially more like a recipe. We use the analogy of a recipe a lot. Coding breaks down a problem into little teeny pieces that are small enough, ultimately, if you compile it for a computer to be able to do. So what we said was, look, this is how science happens. And the science of cryptography is a real science. And we need to protect it. And the First Amendment needs to protect the publication of this code. And code is speech, for sure. But really, in this context of the ongoing development of science, it was a very, very strong, I think, both metaphorical and practical argument.

17:21Cindy Cohn:And we were successful with it. The lower court and the Ninth Circuit both held that the publication of Dan's code was speech for purposes of the First Amendment, and that the regulations didn't protect it. And then ultimately, as we were making our way up through the courts, the government actually backed down. And so we didn't get the clean win that we wanted. As a lawyer, I like a clean win. But we actually got encryption freed. And that's part of the reason why we all have encryption in all of the things we do online now, and it's available to us.

17:53Guy Kawasaki:And if the Department of Justice had won, what would we be looking at today? What would the internet be like today?

18:00Cindy Cohn:I think the internet wouldn't be a place where you could have any kind of private conversation, tools like Signal and WhatsApp that a lot of people are using these days to do everything from communicating with their loved ones to political organizing. You know, the web itself is encrypted now. And that's some work that EFF and our friends at something at an organization called Let's Encrypted. So that when you type in, you think you're going to your bank to do a transaction, you're actually going to your bank. So there's encryption that you might not see, but that is on the back end of this that makes the internet secure, because otherwise people can get hijacked really easily.

18:36Cindy Cohn:And some people still do get hijacked, but it's much better than it would be. So whether you're doing transactions or surfing the web, getting access to information, any of those kinds of things, they really wouldn't be possible in anything like a trustworthy way if we hadn't freed up encryption.

18:53Guy Kawasaki:So pardon my ignorance, but is this essentially saying that this is HTTPS? I mean, that's why we're HTTPS as opposed to HTTP. Correct.

19:08Cindy Cohn:Correct. That's what the S stands for, I believe is secure, right? Hypertext Transfer Protocol Secure. I might be wrong about the S, but yeah. And the early internet was HTTP, and we have slowly worked, and EFF had an actual tool that we used for a while called HTTPS Everywhere that would help things present in HTTPS. But now it's built into the browsers. Most of what people do browsing is HTTPS because we were able to get the security turned on in the protocol and used in most of the internet.

19:43Guy Kawasaki:So in my mind, I see young Cindy Kong, fresh out of law school, in this small little practice, right? And now she's taking on the Department of Justice. And you may not have a clean win, but you won. I mean, let's face it, you won, right? So now, is this the equivalent of you went to your first Olympics and you won a gold medal? I mean, how do you top that for the rest of your career?

20:09Cindy Cohn:Yeah, I think it definitely was an amazing victory. And it was important and lots of people helped. I was able to sit at the front of a fight, but there were other people doing a lot of work on it. But yeah, I do feel like I got my first chance to play in the big leagues and we were able to win. And the sad part about it is we keep having to defend that win. Right now, the UK and Australia are very hostile to encryption. The U.S. periodically, there's efforts to try to break encryption. We learned from the Snowden files that the NSA, once they lost their regulatory authority through the export regulation, started going kind of in the back door and weakening encryption.

20:49Cindy Cohn:So on the one hand, we won this tremendous victory and it was a huge victory and made a big difference. On the other hand, it feels like I've spent the last 20 years since trying to defend what it is we stood up for, which is the right to have a private conversation online.

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21:59Cindy Cohn:You're listening to Remarkable People with Guy Kawasaki.

22:03Guy Kawasaki:So now we're going to take another leap in time to 9-11. And my first question about 9-11 is, did the 9-11 commission find that it was security leaks or insufficient security that led to successful terrorist attacks? Was the security the issue?

22:24Cindy Cohn:No, absolutely not. They very clearly rejected that theory. And, you know, what they found was that there were communication problems between the NSA and the FBI and the various government entities. But the big thing was that something called groupthink, right, that the people at the top, including George Bush, remember, Bush was warned that Osama bin Laden was going to strike inside the U.S. They just couldn't take in information that was inconsistent with their worldview. And this is a psychological phenomenon that has been studied. So, no, it wasn't about the lack of security. It wasn't because they were somehow limited in their ability.

23:05Cindy Cohn:You know, the things that they do to protect our rights limit some of the things that the government can do. Those things weren't what the 9-11 Commission found were the problem.

23:14Guy Kawasaki:Okay, so the 9-11 Commission did not find that security is an issue. But correct me if I'm wrong, but since 9-11, the words national security have been used to justify many things as if the Commission found that it was security. So the commission findings were not addressed, but we introduced this whole new concept of whenever you want to do something you want to do, you just say it's for national security. Is that an unfair judgment on my part?

23:45Cindy Cohn:I think that's true. Sadly, you know, they were able to really and some of this happened. The 9-11 Commission happened a little later than a lot of the laws. Right. The Patriot Act was passed right after the 9-11 Commission came out significantly later. And the Congress rushed in because they were frantic to do something because the attacks were horrible and clearly things had gone wrong. And a lot of the things they did were things that the FBI and the NSA really had wanted for a while. But they didn't map to the problems that the 9-11 Commission found nearly as closely as I think people would hope or that a lot of people think.

24:24Cindy Cohn:because we felt insecure as a result of the attacks, which were terrible. Anything that said that it was going to bring us security got a lot of support. And you and I were both adults during this time. I think a lot of people now might not remember it in the same way that we do. But making people feel more secure was a government priority. Whether it actually made us secure or not seemed to be not nearly as important as the story they were telling.

24:54Guy Kawasaki:So, Cindy, is the bottom line that national security and privacy, it's kind of a zero-sum game? It's mutually exclusive, or can we have both?

25:04Cindy Cohn:Oh, we can definitely have both. And again, this is a point. The 9-11 Commission didn't find the thing that made us unsafe was the civil liberties and the security things. It found that there were other things. The thing that will make us most secure is if the people at the top of our country actually believe it when analysts tell them there is a threat coming. instead of not believing it. There are things that we can do to make ourselves more secure. I think the number one was putting doors between the cockpit and the rest of the plane. Like that is a very significant difference and something that actually has good data behind it about making it a lot harder to hijack a plane.

25:43Cindy Cohn:So there's lots of things we can do that make us secure. The problem is that not everything that goes by the banner of making us secure actually makes us more secure. And for many of those people, those things, our rights are what we give up. There's a thing that we lose in exchange for this false promise.

26:02Guy Kawasaki:Well, so in a sense, you are saying it's a zero-sum game.

26:06Cindy Cohn:No, I'm saying that real security is consistent.

26:09Guy Kawasaki:Real security, yeah.

26:10Cindy Cohn:That there's plenty of things you can do that are real secure that do not undermine our civil liberties or our privacy, and that those ought to be the things we do first. And I think privacy and security go hand in hand. On a technical level, encryption does that, right? Encryption gives you privacy. It also gives you security. They quite literally are the same things. But I also think for in terms of protecting our rights, those things go together most of the time as well.

26:38Guy Kawasaki:As I was reading your book and I read about all the efforts in mass surveillance and stuff, it seems to me that with all this mass surveillance that was going on, shouldn't the Epstein files be like totally documented? Shouldn't every conversation, every email, everything be in the Epstein files if all this surveillance was going on?

27:00Cindy Cohn:I think that this is one of the other pieces that's hard for people to reckon with, is that there's a lot of road between technically surveilling everything and actually making that information available to people. And we've seen this with police body cams is another one where, you know, in theory, that ought to give a lot of accountability to the police. But what ends up happening is it really doesn't. It's very hard for defendants to get a hold of it. The cops take a look at the footage first and then conform their stories to what the footage shows. So it ends up helping them mislead the public about what they're doing.

27:35Cindy Cohn:So you have to look both at the technology and at how we're using it. And I think the Epstein files is a good example of, you know, there's tons and tons of these emails. It's not like there wasn't a pretty strong trail, but yet getting them out in a way that both protects the victims and identifies the things that we as a society need to know in order to make judgments based on it, we're still fighting to make that happened. I think people think that sometimes that mass surveillance will automatically make us safer. And it's far more complicated than that. And I think in many instances, it doesn't.

28:09Cindy Cohn:And again, you have to look both at does it make it safer? And what are we losing as a result of it? And we just had an incident with the ring doorbell cameras, right? Where people saw in the Super Bowl commercial, this idea that ring doorbell cameras can help find a lost puppy. And I'm a big dog lover. I mean, it pulled on my heartstrings, too. But I think immediately people People saw, you know, what else can you track with that through a neighborhood? And do we feel comfortable that our law enforcement and ICE will never misuse this mass surveillance technologies in ways that harm us or our neighbors?

28:47Cindy Cohn:And part of what happened there was there was a huge percentage of the people who saw that ad who immediately made that connection and said, this mass surveillance isn't going to make us safer. We don't want any part of it. And as a result, Ring dropped the arrangement it was making with Flock, which is a company that does mass surveillance for license plate readers, and basically said, we can't do this. People are understanding how this mass surveillance can be misused at a level that surprises us.

29:13Guy Kawasaki:When I saw that ad, all that could go through my mind was, are you telling me that your agency and your CMO and your advertising people, none of you discussed the thought that people might be appalled by the thought that all these ring cameras are going to be taking pictures and they're not just going to find your little pet. They're going to find anything. How can that get to the Super Bowl without somebody being a devil's advocate? Are we more groupthink? incoming.

29:41Cindy Cohn:Yeah, it sounds like group thing to me. I mean, I don't know. But I do think that sometimes people get so caught up in their own stories that they really can't see the reality. And we see this in the higher echelons of a lot of parts of our government and our corporate America sometimes. And it's good that there was a reality check, right? That enough people made enough noise that they realized that this wasn't landing in the way that they thought it was going the land. But similar things going on now, you know, Meta has saying that they're going to put facial recognition in their glasses that they sell to the public.

30:16Cindy Cohn:And I think there was this kind of nasty internal memo saying this is a time when civil liberties groups that might criticize us are too busy with the Trump administration. And so they won't notice, which of course, we immediately were like, oh, we noticed, and we're going to attack it. But I think it's another moment where the people at the top of these organizations really are not connected with what's going on with real people on the ground who are going to see that facial recognition in glasses is not going to just be used for finding puppies, right? It's going to be used for the kind of horrible anti-detentions and civil liberties violations and discrimination that we're seeing.

30:56Guy Kawasaki:There must be multiple times a week that you say to yourself, how can people who are supposed to be so smart, be so dumb. I mean, it's kind of astounding, right?

31:08Cindy Cohn:Well, it's possible that we do it as well. It's easier to see this in other people than yourself. I think you get caught up in your own story. And it's important to have a range of people in the room or that you're talking to so that you're not so surrounded by sycophants and people who always agree. The nice thing about being at EFF is like, we are not surrounded by people who agree with us. But the more power you get, the more that tends to happen. And recognizing that and finding ways to get a voice that isn't beholden to you to give you a straight answer is, I think, a challenge for anybody who gains a lot of power.

31:42Guy Kawasaki:Okay. So now, because I have the rare privilege of interviewing someone I consider a constitutional expert. I have some constitutional questions. First of all, will you please explain for the layman or layperson, what is the First Amendment? Because a lot of politicians throw the First Amendment around as if, you know, Facebook is not putting enough conservative articles. That's a violation of the First Amendment. And I went to law school for only one week, but I recall that the First Amendment prohibits Congress from controlling the press, not Meta or Apple or Hunter Biden. So what exactly is the First Amendment?

32:29Cindy Cohn:Yeah, I mean, you're correct that this Congress shall make no law has meaning. It means that this is about the government. And it has been included to mean government regulations. So it doesn't have to be an actual law. It can be something, say, that the FCC does or the FTC does. It's how the government has to interact with us. And it says that the government can't restrict our speech except in very narrow circumstances. So yes, when a big company decides whose speech it wants to host and whose speech it doesn't want to host, that's generally outside of the First Amendment. Again, the doctrine is big and complicated, so there are tiny little exceptions.

33:10Cindy Cohn:But in the whole, if you run a bar, You get to decide. You can't discriminate based on race, but you can say, this is a bowling bar. If you don't want to be a bowler, don't come here. You can do lots of things that restrict how you get to control who you're hosting, right? And there's some famous First Amendment cases about a parade and that the people who organize a parade get to decide who gets to put a float in the parade. And that's generally not something the government gets to dictate. Or if you have a bookstore, you get to decide what books you put in your bookstore and the government doesn't get to tell you, no, you can't put that book in.

33:46Cindy Cohn:So these are all things where the kind of private nature of it means that the fundamental decision making needs to stay with the company. So that's the first part of the First Amendment. And one of the things that sometimes people say is, you know, it says Congress shall make no law. That means no law. And, you know, traditionally, that hasn't meant zero. What it's meant is that there's a very high standard for when the government gets to regulate in ways that impact speech. And there has to be a very close fit between what it's saying it's doing and how it actually works. And they call this strict scrutiny or intermediate scrutiny or rational basis.

34:24Cindy Cohn:There's levels. Depending on what the government says it's doing, a lot of what the First Amendment requires is for it to be actually doing that and not having a lot of side effects. So the government saying, well, we just want to make sure that there's no criminals on the Internet. So therefore, everybody has to show their ID before they go online. Well, there's not a very close fit between having a government issued idea and being a criminal. So that would be an example of something that doesn't have a very good fit between the means and the ends.

34:54Guy Kawasaki:So when the FCC prevents Stephen Colbert from having a Senate candidate on and it says it's because of equal time on broadcast TV, is that a First Amendment issue? Did we cross the line there when they put the squeeze on Stephen Colbert?

35:14Cindy Cohn:I think so. I mean, we're still waiting to hear the facts, right? Did the CBS do this voluntarily and basically over censor Colbert? Did the FCC actually say something? We know in the context of Jimmy Kimmel a while ago that the FCC chair actually did say something. In this one, I think we're still trying to understand whether CBS News, CBS, which is, of course, you know, Barry Weiss and now really controlled by some people very friendly to the president, whether they self-censored or whether they were actually censored by the FCC is something that, again, this has just happened yesterday. So the facts will come out.

35:53Cindy Cohn:But either way, it's a problem. It's a problem if the rules are so unclear that self-censorship happens. Vagueness is a doctrine in the First Amendment. Even if the government doesn't directly threaten, if it writes its rules so unclearly or so broadly that it causes self-censorship, that can be a First Amendment problem. Or this isn't about the First Amendment at all. This is about CBS News kowtowing because it's trying to go on bended knee to Trump. And that's the piece that I just can't tell yet.

36:24Guy Kawasaki:And when Stephen Colbert then puts this episode on YouTube, is that an act of civil disobedience? What is that? I mean, can they stop that too?

36:37Cindy Cohn:Well, you know, less so, right? Because the FCC's authority really doesn't include the internet at the same level that it includes broadcast. The whole point of the FCC even having the power to regulate broadcast networks like CBS is because the airwaves are minimum. You know, there's only so many things you can put on the airwaves. And so the government is charged with giving licenses out for who gets to broadcast and those licenses can come with terms. The internet, you don't need a license to publish anything on the internet. The government doesn't regulate the internet at the same way that it regulates broadcast.

37:15Cindy Cohn:And so this is why Colbert kind of did what he did is because if you don't put it on the broadcast networks, it shouldn't be subject to this FCC rule because the internet isn't regulated in the same way as broadcast networks are. And so this is why he came to the conclusion, I think the right one, that regardless of whether he could broadcast it on TV, he could put it on YouTube. And then his only limitation is whether Google, which owns YouTube, Alphabet owns YouTube, will allow it or not. Now, that's its own other problem, right, on the corporate side. But I think he was right to kind of figure out where the rules were and where the rules weren't and go to where the rules weren't in order to get his voice heard.

37:58Cindy Cohn:That's great. And I'm glad he was able to find a way through it so the rest of us could see for ourselves what it was he was actually doing and saying. But you shouldn't have to do that. And the First Amendment also has a doctrine that says just because you can speak in another place doesn't mean that it's OK for the government to scare you away or regulate you away from speaking in the place that you wanted to. So there's a pretty time-honored idea that simply because you can find your way around the block and still get your voice heard, that doesn't mean that the First Amendment problem goes away.

38:28Guy Kawasaki:Although, Cindy, I got to admit that if I were Tallarico, I would say this is the best thing that ever happened to me, right?

38:35Cindy Cohn:There is a thing that was coined by my friend Mike Masnick called the Streisand effect, which says that the more you try to squelch something, the more attention it gets, right? Because the fact that it was tried to be censored makes it even more enticing to people like you and me who are interested in this stuff. And it was named after Barbara Streisand. You know, this is in the early Internet days. There was somebody who had a plane that flew over and would take pictures of people's properties and you could buy one and have an overhead picture of your property. This is before drones were really such a common thing.

39:06Cindy Cohn:And Barbara Streisand got very upset that there was somebody taking a picture of her property from overhead and made a big noise about it. And so suddenly all of us learned about this service and that you could take a picture of Barbara Streisand's property from the sky than ever would have heard about it had she just not done it. And so we call this the Streisand effect in honor of Barbara Streisand, who was the first one to have this experience kind of so big happen. And I think they just Streisanded their, you know, Mr. Tallarico's fight in Texas at a level that you can't pay for that kind of publicity.

39:42Cindy Cohn:And I hope that's the lesson that people learn is that censorship backfires. It's not maybe your best strategy.

39:49Guy Kawasaki:The bummer is poor Jasmine Crockett is probably pulling her hair out. Like, why didn't they ban me? Why didn't they ban my opponent? In a bizarre way, maybe if your book was banned and my book about Signal was banned, it would help us. Exactly.

40:05Cindy Cohn:I think that's right. And I really appreciate your book about Signal. I think that you're trying to help as broad an audience as possible understand how to use this tool is one of the ways that we continue to honor the need for privacy that people have. So thank you for it. But yeah, I wish somebody would come along and censor it for us. And then we could be on all the late night TV shows talking about how we were censored.

40:28Guy Kawasaki:And then we'll be banned from the broadcast TV. So we'll all go viral on YouTube. Just keep going, right?

40:34Cindy Cohn:And then we end up back on the Internet.

40:37Guy Kawasaki:All right. So now we covered the First Amendment. Skip a few amendments. The Fourth Amendment. What is the Fourth Amendment?

40:46Cindy Cohn:Well, the Fourth Amendment says that you have a right to be secure in your houses, your papers, your things from the government coming and searching and seizing them. It's a basic privacy right against the government coming into your private space and taking your stuff. And it requires something called reasonableness. It also it says that the government can't do it unless it gets a warrant. That term gets used a lot. But in the context of the Fourth Amendment, it generally means that a judge has signed off on the police coming not just into your house, but that's kind of the canonical thing. thing, but also having access to your papers, which can mean your email, it can mean your other stuff that might not physically be in your house.

41:32Cindy Cohn:Quite famously, the Fourth Amendment says it protects people, not places. So your phone calls are protected by the First Amendment, even though they, as a technical matter, leave your house to go to the places they go. And the same thing should be true for your emails and other things that you do. So the Fourth Amendment is your basic privacy protection against the government having access to you your home and your stuff and it creates this zone of privacy or should create this zone of privacy around you you know

42:00Guy Kawasaki:a lot has happened in 250 years or so so if you were able to amend the fourth amendment to bring it up to speed to 2025 what would you do oh gosh i think there's a lot that one needs to do

42:15Cindy Cohn:I think that we need to be really clear. Again, this idea that it protects people, not papers, needs to be very explicit. That now most of us, you know, perhaps in colonial times, we stored our papers in our home. Now our papers are stored all over the place. And one of the places that they are stored is with these third parties, your bank or your ISP or your other places. and making sure that the Fourth Amendment really protects those things wherever they are. It would undermine something called the third party doctrine, which has been used to undermine people's privacy in the digital age. That would be one of the core things I would do to rewrite the Fourth Amendment.

42:54Cindy Cohn:This reasonableness standard has really created a situation in which the amount of privacy we get has shrunk over time. And I think that that's a very bad ratchet because it's this reasonableness standard basically means that people are used to it, then it's not a privacy violation anymore. And I just don't think that that's right. I don't think the fact that you get used to having your rights violated means that you should have fewer rights. And I think that that's what's happened with a lot of the Fourth Amendment.

43:22Guy Kawasaki:Up next on Remarkable People.

43:24Cindy Cohn:I have decided that what I want to be is the sharp end of the spear and that I will do what I need to do in order to get there rather than the choice to use all of the purest technology. So if people email me and they want to have a conversation, I will try to move them over to a secure thing. But if they don't want to do it and they want to do it over an insecure channel, I will talk to them. I will not push people. We want to be available to people and be able to help them wherever they are.

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45:16Guy Kawasaki:Become a little more remarkable with each episode of Remarkable People. It's found on Apple Podcasts or wherever you listen to your favorite shows. Welcome back to Remarkable People with Guy Kawasaki. I'm having a hard time keeping two conflicting thoughts in my brain. So on the one hand, I now understand the Fourth Amendment. But then this thing called the NSL. So how does an NSL exist if the Fourth Amendment exists? So can you explain the NSL and, you know, poor guy, the apparent contradiction between those two things?

45:56Cindy Cohn:Yeah, I think there's another part of the Fourth Amendment that I would get rid of, which is the distinction between the content of your messages and the metadata. So the classic way to think about this is the text of your letter inside an envelope is the content and the addressing on the outside is the metadata. Same thing with your email, right? The two from subject versus the actual content of it. And this is another area where the Fourth Amendment has really been undermined because the courts have basically said that the only thing that gets protected is the content, not the metadata. And that has meant that things like national security letters, NSLs, which are subpoenas, so they're not approved by a judge, can be issued to your ISP or your service provider, your phone company, and get the metadata about you, who you talk to, how often you talk to them, where you are when you talk to them.

46:51Cindy Cohn:Your location is often tracked by these kinds of things. And that doesn't require a warrant. That doesn't require a judicial warrant. It can be done with this NSL, which is really a form of a subpoena, which doesn't require a judge. And this is what has allowed national security letters to exist. They are very, very commonly used to get information about millions, hundreds of millions of people from their service providers. And it's done under a cloak of secrecy in national security. And the national security letter has meant that the FBI has claimed that it can gag people who receive this. Your ISP can't tell you that it has received one of these.

47:33Cindy Cohn:When we started the fight, it was forever. They were gagged forever. We've poked a few holes in that now. It's still longer than I would like. But the combination of being able to get this information about us and prevent anybody from ever telling us that we've gotten it really has meant that the government has a lot of free range to spy on us and to know what we're up to, which I think is pretty inconsistent with the Fourth Amendment, with what the founders are trying to do with the Fourth Amendment.

48:01Guy Kawasaki:Every chapter of our book about signal has a little epigraph, a little quote. And when I read your book yesterday, I'm going to alter our book because there's a quote in there about the metadata where somebody said, we murder people based on metadata.

48:21Cindy Cohn:We kill people based on metadata, yeah.

48:23Guy Kawasaki:And I read that. I said, man, that is a great quote for the chapter about metadata in my book. So now people are wondering, well, what's the big deal about, you know, knowing the outside of the envelope? Well, somebody said they kill people based on metadata.

48:39Cindy Cohn:Yeah, they definitely do. Because it helps you figure out who the networks are, who's talking to who and how often. If you know who's talking to who and how often they're talking to them, you know a lot about a person. If you know where they are, and most of us, we've got these phones. They're pinging all the time in order for our calls and texts to go service. If you know where somebody is at night and where somebody is at day, most of the time, you can find them pretty easily. And most of us are pretty trackable with just three or four pieces of metadata about us. And again, it doesn't just implement you.

49:13Cindy Cohn:It can implement all the people you talk to. And one of the things I try to talk to people about privacy is that even if you think you don't have any need for privacy, I suspect you know somebody who does. whether that somebody doesn't have papers or even has papers but ends up a target in this country right now lots and lots of people who have legitimate asylum claims or green cards or other things are finding themselves swept up in these kinds of things if they're a protester if they're an activist if they're just somebody that the government doesn't like all of this stuff you are very findable trackable and the people that you communicate with and associate with are trackable as well, just from your metadata.

49:51Guy Kawasaki:I've encountered this every day since I wrote this book about Signal. And a lot of people say, well, what's the big deal? You know, WhatsApp and Apple messages end-to-end encrypted. So I'm completely secure. And I'm like, I just go, oh, my God, let me explain to you what you just said. I mean, they collect enough metadata to, I don't know about kill you, but, you know, they can really pin you down, right? That signal does not collect.

50:18Cindy Cohn:I think that that's right. And I think, again, it's not like it's not useful to use these things. It can be very, very useful and important. And I don't want people to think, oh, well, all hope is lost because they've got my metadata. But it is the next frontier of something that we need to protect if we want to give people real privacy. It helps require the cops to actually identify who they're looking for a lot better, although there are these things called geofence warrants that are looking at all the people in a particular area that we also have to fight. But it does help quite a bit. But there's no golden shield of protection.

50:52Cindy Cohn:You know, it's not like one of those Harry Potter things where you can just, you know, do that. These fights have to be fought throughout. And just because it helps a little doesn't mean it goes all the way, but it does help quite a bit.

51:03Guy Kawasaki:I just want to point out to you, Cindy, that I'm more the Maxwell smart cone of silence than the Harry Potter. But, you know, that's just

51:10Cindy Cohn:an age thing they're both they're both great they're both getting at the same problem for

51:15Guy Kawasaki:different generations next question is about section 230. yeah section 230 what the hell is section 230?

51:26Cindy Cohn:section 230 is pretty straightforward it basically means that everyone is responsible for their own words it means that if you say or do something that's harmful you are the primary person responsible for that. And that the people who provide you with services should not be responsible except in some narrow areas. And this is about civil liability. Sometimes this gets very confusing for people. This means like if I say something that's defamatory about you or somebody else, I'm responsible for that. The website that we're using, the tools that we're using, they're not responsible for that, I am, and that they can continue to provide services to lots of people and not have to be held liable just because somebody says something defamatory through one of these services.

52:16Cindy Cohn:So it's about what lawyers call secondary liability. Primary liability should be with the speaker. And when do you give secondary liability? And section 230 says that if you're an internet service provider of any kind, you're providing a digital service, you are generally not responsible for what your users say. The exceptions for that are criminal things or if you've been involved in creation. You know, Meta's not responsible for what I say on Facebook about you, but they might be responsible for their own ads, you know, for Meta's ads. So that's all 230 is. It's a form of secondary liability protection for services in the digital age and puts responsibility for illegal speech, illegal behavior on the people who do the behavior.

53:02Guy Kawasaki:Now, let's say I'm a devil's advocate and I say, all right, so like there's no responsibility for the platform. But what if the platform's algorithm changes and feeds people stuff? Didn't the platform just assume some responsibility because of their algorithm?

53:21Cindy Cohn:This is being fought in the courts right now. And I think the answer is no. And the reason I think answers no is that like the First Amendment clearly protects the newspaper's decision about what it puts on the front page and how it presents information to you. A magazine is protected regardless of how it presents information to you and what it decides to put in and what it doesn't decide to put in. An algorithm isn't very much different than that. Again, there's lots of criticisms you can make about the way these algorithms work, but I don't think that they should break the 230 because I think a publisher or a platform should be able to make choices about what they want to provide to people and in what order in ways that are protected.

54:07Cindy Cohn:Again, I really think it's wrongheaded. Trying to help people figure out what they want to see using technology to do that is somehow creating liability. I think it's very dangerous. And I don't think it's dangerous because I care about Facebook or any of these companies. I think it matters because if you think about how the internet works, nobody gets on the internet all by themselves, right? You need service providers upon service providers upon service providers. Some of them can be public. Some of them can be nonprofit, but whatever. Like nobody hosts every little piece needed to speak on the internet, right?

54:42Cindy Cohn:Here we're using a browser. We all have ISPs. We've got this app inside the browser. or all of those pieces are necessary in order to speak online. So if we start creating liability for what people say online through all the pieces of this from the platform on down to the ISP or the telecommunications company, people are not going to do it. And the only people who are going to do it are the big companies who can afford to withstand litigation. So I worry that we're cutting off our nose to spite our face. We're going to empower the powerful who can afford to withstand liability. And we're going to make it so that nobody brings us the next app, right?

55:18Cindy Cohn:I always say Craig Newmark started Craigslist and he's an old friend and supporter of EFF. And while I really like Craig, I'm not interested in Craig and Craigslist. I'm interested in the next Craigslist. and the next person who wants to create a space for the rest of us to speak to each other, they have enough barriers already in the way that the world is consolidating, but they shouldn't also have the risk that they are gonna get sued out of existence the first time somebody says something actionable on their platform. They're just not gonna provide it. I think it's a recipe for continuing consolidation in our online world if we get rid of Section 230.

55:59Cindy Cohn:And it dismays me to see so many people who I think are genuinely concerned about bad things happening online not recognizing the consequences of the attacks that they're launching on 230.

56:11Guy Kawasaki:So the irony is that all these big companies who might complain about setting aside 230 would actually benefit because they can withstand the attack. And two guys in a garage, two gals in a garage, starting the next well could not.

56:27Cindy Cohn:Yeah, I think that that's right, ultimately, how it would play out. I don't think that they want to be sued. I think that they would benefit more if they weren't sued. But they've supported lots of breaking of holes into 230 already. And I think the reason that they've done that is because they see a competitive advantage that some of these holes in 230 make. They can bear the cost in exchange for blocking out their competitors, and they're willing to do that.

56:54Guy Kawasaki:The next subject is, in your book, there is just a wonderful picture of you and Ed Snowden. Okay. So now, what do you think Ed Snowden's legacy will be? Was he a traitor or was he a patriot?

57:12Cindy Cohn:It depends on what you think about somebody who tells the truth to us about what our government is doing. And I think that that's somebody who's a patriot. I think what Snowden did was bust through a lot of lies that the government was telling the American people about what it was doing and gave us all a clear picture of some really important things that the government was doing around mass spying, around undermining encryption, around lots of other things. The little kid who says the emperor has no clothes, like that kid is a hero to me. I'm sure that he pisses off powerful people who benefit from secrecy.

57:52Cindy Cohn:But I think that the American people deserve to know if you have a self-governing society, you have to be able to make reasoned decisions about what your government should and shouldn't do. And so I think that Mr. Snowden, at great personal risk, told the rest of us things that we needed to hear. And I think we're still needing to hear them. So I think of him as a hero in the same way I think of Daniel Ellsberg as a hero who helped us see the truth about, you know, through the lies about what the government was doing in Vietnam back in the day. And some of the American founders who were calling out the British for their lies about what they were doing.

58:31Cindy Cohn:I think those people are heroes. And I think Snowden deserves to be up in that pantheon.

58:36Guy Kawasaki:And how do you wrap your mind around the fact that Ed Snowden is living in Russia? That is kind of a contradiction, though.

58:44Cindy Cohn:Look, I will tell you where you live when the government takes your passport away is where you are when your government takes your passport. He can't go anywhere else. He doesn't have a passport. He doesn't have papers to travel. He was in Moscow in a transit lounge trying to get someplace else when the government pulled all his papers and locked him in. He's stuck in Russia. He didn't pick it. And again, I think that he is trying to make the best of that situation. situation but I think that if you look at the story about how he ended up in Russia like he didn't pick it he was trying to get other places he was trying to get out of and travel in a way that wasn't in U.S.

59:24Cindy Cohn:airspace because the U.S. was threatening to shoot down he was trying to kill him shoot down planes that he was in and I'll tell you if you've traveled around the world and you don't have a passport you don't get to keep traveling and that is what happened to Ed and And I think that he's the first to tell you that's not how he planned his life. That's not what he wants, but he's kind of making the best of the situation. Mr. Putin has let him stay in part because he likes the black eye that that shows the American government about what it does to people who tell the truth. I think that we should recognize that.

59:59Cindy Cohn:I'm glad that he's let Mr. Snowden stay and let him live. But the reason that Ed Snowden is in Russia is because that's where he got stuck and because Mr. Putin wants the American people to see the hypocrisy of their government. And if you don't see that, then I don't think you're looking at this situation based on the facts.

1:00:20Guy Kawasaki:So it's not an ideological choice. It's a lack of choices where he can go.

1:00:26Cindy Cohn:Yeah. He can't go anywhere else. You talk to the people at the NSA, they want him to come here and face the Espionage Act, which has the death penalty for what he did. And I think that's the wrong way to look at somebody who told the American people the truth about what their government was doing, some of which was very highly illegal. Right. Like he unveiled the government's illegality. And that is not the right way to address that by throwing the death penalty at somebody.

1:00:56Guy Kawasaki:My next topic is we're going to have a little privacy lightning round. Now, when you're on a podcast and the whole says we're going to do a lightning round, it's usually like, okay, guy, barbecue or sushi, iOS or Android, Mac or Windows. But my lightning round is different. All right. All right. You are the goddess, the queen of privacy. Your privacy is defender, as this book says. So I'm going to ask you about your real day-to-day practical use of technology. I am so curious. So we're just going to go down a list. And let's start with who is your phone carrier? Verizon. Okay.

1:01:48Cindy Cohn:We don't have the choices we should have.

1:01:50Guy Kawasaki:Okay. What messaging app do you use? Largely Signal. Okay. What email do you use? Are you a Proton girl or are you just using a hosted system?

1:02:02Cindy Cohn:For my personal one, I use something that's hosted by two cows. Okay.

1:02:07Guy Kawasaki:And what about EFF?

1:02:09Cindy Cohn:EFF at this point is a Microsoft shop because Microsoft lets you hold your encryption keys. But we are not happy about having to do that. We tried to host our own email till long after everybody else did. And the amount of resources we put into doing that became unsustainable for a nonprofit. Ultimately, we tried to take people's donations and use them to build good in the world. And I couldn't have a growing percentage of that money going just so that we could self-host our email and try to fight the spam and the bots on our own. And I think that's a real problem that we need to fix. But ultimately, I want people's donations to go to the fighty lawyers, activists, and technologists, not to a huge chunk for us supporting our own infrastructure.

1:02:58Guy Kawasaki:Okay.

1:02:59Cindy Cohn:It's a hard decision. Okay.

1:03:01Guy Kawasaki:Cloud storage, zero knowledge. Are you using iCloud or Google Drive or Proton Drive? What do you use for your cloud?

1:03:09Cindy Cohn:I don't use much. I mean, again, EFF is Microsoft, and so that's what we use for it. I don't use a lot of cloud storage myself. I am an Apple user largely. So I guess to the extent that there is some stuff, it's there.

1:03:23Guy Kawasaki:We've talked briefly about email and messaging and cloud storage, but it seems to me that maybe the chatbot that you use knows more about you than all of those things, right?

1:03:35Cindy Cohn:It definitely can. I mean, you know, people are trying to build some chatbots that are a little more privacy protective, but so far we are not seeing that at the level that we need to.

1:03:44Guy Kawasaki:Yeah, I mean, basically, we need a signal of chatbots, right?

1:03:50Cindy Cohn:And there are people trying to build them, but it's not constantly training the model. You can download a local version of the model and have it interact with you and not feed it back up to the cloud. That's how a lot of the enterprise users work. And I think the rest of us should have easy use of those kinds of things.

1:04:06Guy Kawasaki:So vis-a-vis your iPhone, are you using biometrics to unlock your phone?

1:04:15Cindy Cohn:Occasionally. I just want to fight the hypo a little bit here. Like my work is to try to set the law and the policy and the rules in a way that support you. And individual choices are sadly not enough to get us there. So I appreciate and support people who make individual use the proton mail, make individual choices, don't use proprietary software. I've tons of people in my life who won't use any services from any of those people. I have decided that what I want to be is the sharp end of the spear and that I will do what I need to do in order to get there rather than the choice to use all of the purest technology.

1:04:55Cindy Cohn:So if people email me and they want to have a conversation, I will try to move them over to a secure thing. But if they don't want to do it and they want to do it over an insecure channel, I will talk to them. I will not push people. We want to be available to people and be able to help them wherever they are. So, sorry, that's a long way of saying, I'm not sure that my personal choices are the best way to think about what you should do.

1:05:19Guy Kawasaki:But still, you have to admit that it's a reasonable line of questions to ask. What was someone who knows so much about what's going on? What is she using?

1:05:29Cindy Cohn:I think that's fair. And I'm not saying it was an illegitimate thing to ask me. I'm just saying that many, many, many of these problems need to be solved, not by personal choices. And that sometimes when you reduce it to personal choices, you make people think that they can totally protect their privacy if they just make all the right choices. And we need to fix this on a whole other level. It is not up to you alone to protect your privacy by the choices you make. We need better tools available to more people. And we need a regulatory and a legal and a constitutional framework that supports that.

1:06:01Cindy Cohn:And that's the work that I do. So I just don't want people to think that it's all your fault. There is a little self-blamey, like, if you use Google, it's all your fault. You don't have any privacy and you don't care. And I don't want people to get to that kind of place with themselves because it's not fair. It's not a fair fight. It's not like you could just make all the right choices and protect yourself.

1:06:24Guy Kawasaki:Well, Cindy, pardon my French, but this is why you are Cindy fucking Cone because of that answer, man. That is a great answer. All right. So, Cindy fucking Cohn, my last question for you is, what is your next big battle? I mean, we kind of started the interview with that, but I'm really curious. What do you want to do next?

1:06:47Cindy Cohn:Well, I mean, look, I would like to spend time trying to plug all of these national security holes that we built into our constitution. And I'm looking for ways to best do that. I miss being in the courtroom. I like being in the courtroom. I'm not sure the courts are the right place to start with that. So these are the things I'm puzzling over a little bit. I'm starting to puzzle a little bit about AI and how do we actually build a privacy protective AI world. And so I'm kind of trying to take a little bit of this time with the book tour and the other things I'm doing to close up BFF to see what shows up and think about what I want to do and try to find the way to connect my skills with the right fight.

1:07:29Cindy Cohn:I know what fires me up and certainly suing the government fires me up. So I will do something along those lines. But I'm trying to give some space to see which are the right fights next. And I haven't landed on that yet, but that's in part because I think the world presents you with things. And I'm trying to create space so that the world can present me with things. I didn't come out of law school and think, oh, man, I really want to free up encryption or I really want to stop the NSA mass spying. Like those fights presented themselves to me. And I'm like, great, this is a place that I can plug in.

1:08:00Cindy Cohn:And that's how I've made all the choices so far. And that's kind of where I am now.

1:08:05Guy Kawasaki:Well, Cindy, I, for one, am so happy that you took up these fights. And I sleep a little better knowing that you're out there fighting for privacy. Well, thank you.

1:08:16Cindy Cohn:That's so kind. And it's been such a joy to get to know you from the first time we did this together, Guy. It's been really such a ray of light in the world.

1:08:23Guy Kawasaki:So thank you. Well, thank you very much. And best of luck. I'll hold up your book one more time. This is Cindy's book, and you must read it. And you also should write a nice little check to the EFF to support the EFF. I got my letter last night. This is, thank you for your support in 2025, Guy. We look forward to working with you in 2026. I got that yesterday.

1:08:50Cindy Cohn:Absolutely. Good job, team. I had nothing to do with that. I mean, other than telling them to do it. We did not schedule the timing. But, you know, we stand on the shoulders of people who realize that these are important issues and want to support us. It takes people who do this work for the long haul, who are really in it for the long haul, and who can make their lives work doing it in order to really win. You know, I always say the Department of Justice lawyers, they spend 10 to 20 years getting good at what they do. We need to be able to do that as well. And we can do that because of the ongoing support of people who make it so that I can grow up young lawyers into sophisticated ones.

1:09:27Cindy Cohn:So thank you.

1:09:29Guy Kawasaki:Again, thank you, Cindy. And, you know, my best wishes to you. If you have a big retirement soiree, please get me invited. I would love to come to that. I will.

1:09:39Cindy Cohn:There's definitely a few things planned. I'm not privy to all of them. I think they want to surprise me, but I will make sure that the team lets you know.

1:09:45Guy Kawasaki:I think we should rent out Levi's Stadium. We'll get Bad Bunny to perform for you. I would love that. Yeah.

1:09:53Cindy Cohn:I would love that.

1:09:54Guy Kawasaki:Get Beyonce, Bad Bunny, Snoop Dogg. We'll get them all. Get everybody. Yeah, sure. That would be fabulous. Let me just thank my team, which is Madison Neismar, who she's the brains behind me. And there's Tessa Neismar, who is a researcher for us. There's Shannon Hernandez, a sound design engineer, and the incomparable Jeff C, also a co-producer. So that's my team. And, you know, Cindy, I know someday I'm going to get an Apple News notification. Cindy Kuhn now appointed to, and I'm going to say, oh my God, she did it. I look forward to that day.

1:10:35Cindy Cohn:Well, thank you so much.

1:10:40Guy Kawasaki:This is Remarkable People.